Body v Bracks; Smith v Bracks

Consideration of relevant matters

1. As I am satisfied that the tree has caused damage to Mr Body's property, orders can be made, either those sought by the applicant or others as I see fit after considering the matters set out at s 12 of the Trees Act. Having considered all of the matters at s 12, I discuss relevant ones below.
2. The tree is close to the boundary of Mr Body's property, 100 mm from his garage wall at ground level, and most likely growing against the wall's footing below ground.
3. Mr Green wrote on page 3 of his report: "The tree is not protected by Inner West Council Tree Preservation"; and "Council consultation and permission is not required prior to the pruning of T1." This is based on his interpretation of the local development control plan and the tree's proximity to buildings. In fact, Control 5.2 (application assessment criteria) of the Leichhardt Development Control Plan 2013 ('the Leichhardt DCP') includes: "(i) Distance: Approval will be granted for any tree located within two (2) metres of a dwelling house or garage located within the same lot as the tree, unless the tree is protected under section 4 of this part."
4. The tree is not located within two metres of a house or garage located on Ms Bracks' property, so this control would not apply. (And, if there was a house or garage on Ms Bracks' property within two metres of the tree, consent would still be required, and would be granted. The control does not state any exemption.) It seems that Inner West Council's consent would be required to prune or remove the tree, with certain exemptions as per the Leichhardt DCP. Control C8 of the Leichhardt DCP also requires replanting as a condition of consent: "Council will require replacement tree/s to be planted as a condition of any consent to remove a tree to effectively maintain the urban forest canopy across the LGA."
5. Pruning the tree would not prevent it causing further damage to Mr Body's property.
6. The tree contributes significantly to the landscape of Ms Bracks' property and to public amenity, and to the leafy character of the Balmain neighbourhood. It can be seen from the street. It provides shade, cooling, habitat and other ecosystem services. Its removal would result in the loss of these benefits, which could be replaced to some extent, but not fully in this courtyard, by suitable replanting.
7. Mr Tran suggested that removing the tree might result in property damage as roots decay and the surrounding ground subsides. There is no evidence to support this. Soil moisture levels around the tree may increase if the tree is removed, and this might cause swelling of any reactive clay soils. Whether or not this might cause property damage is unknown, whereas retaining the tree will cause further property damage.
8. Mr Body took action when he first noticed damage to his wall, writing to Ms Bracks in 2013 and outlining his concerns. Several meetings followed over ensuing years. Mr Body obtained advice from engineers and builders; he had gaps cut into the wall to prevent damage to his dwelling. Ms Bracks has at least been on notice of damage possibly being caused by her tree since 2013. She met with Mr Body and engineers and builders, but has taken no action to prevent damage. The tree's proximity to the garage wall suggests to me that even a layperson with no experience of arboriculture or engineering might expect the tree would cause damage. In August 2020, more than 6 months before these proceedings commenced, Ms Bracks obtained a professional engineer's report (the BSPR report) advising that her tree was the likely cause of damage to the garage wall.

The tree must be removed

1. There is no reasonably practical solution to prevent the tree causing further damage other than removing it. Mr Tran suggested demolishing the garage wall and replacing it with a lightweight wall that is flexible, such as a steel panel or timber paling fence. Piers would need to be located well clear of all woody roots. While such a solution might temporarily prevent damage to a new wall, it would not prevent damage to the garage floor. Mr Body might reasonably expect to replace the wall, if it needs replacing, with a similar structure to the existing wall. The Court has, in several cases, ordered repair works with some variation to a fence to allow for tree retention while avoiding further property damage: for instance, Lees v Primrose [2014] NSWLEC 1122. The situation in the current proceedings differs in that the structure is a brick garage wall rather than a fence, and any solution is likely to be effective only in the short term. All things considered, I see no practical alternative to removing the tree.
2. Mr Newhouse compared the situation in the current proceedings to those in Liang v Marsh [2011] NSWLEC 1026 ('Liang') and asked the Court to consider Commissioner Fakes' findings in that matter. Fakes C found that removing a blue gum would be disproportionate to the risk of its branches falling and causing injury. She found pruning the blue gum could sufficiently mitigate the risk. The risk of Ms Bracks' tree causing further damage to Mr Body's property cannot be managed by pruning.
3. Orders will be made for Ms Bracks to remove the tree. Ms Bracks will not be required to obtain Inner West Council's consent for the works (s 6(3) of the Trees Act). Orders will allow for the stump to remain, although if Ms Bracks wishes to also have the stump removed, she may of course do so. Should Mr Body need to remove roots on his property during any future works to his property, that is a matter for him.

No compensation will be ordered

1. Mr Body seeks compensation of $10,285 for replacing the garage and garden walls, and $4,125 for replacing the garage floor. Mr Newhouse suggested that Mr Body was aware of the tree's presence when he bought his property, comparing the situation again to that in Liang. The situation in Liang has little in common with the current proceedings. Fakes C found at [34] in Liang that most of the damage caused by a tree occurred prior to the applicant's purchase of the property, whereas Mr Body's wall has primarily suffered damage since he came to his property. It is not a previous owner who has suffered a loss, but Mr Body himself.
2. The most severe damage to the wall appears to be the large crack and tilting first reported by Mr Body to Ms Bracks in 2013. In his letter of May 2013, Mr Body wrote: "On Monday of this week a large crack appeared in my garage rear wall… It starts at the bottom of the wall near the garage entrance in my courtyard and runs, at this stage, halfway up the wall flowing the brickwork on a diagonal… [and] the wall is slightly out-of-vertical and leaning into your rear yard." There is no evidence that this crack has increased in size since then.
3. Mr Newhouse submitted that it is now too late for Mr Body to claim for that element of damage, citing Moroney v John [2008] NSWLEC 32 at [33]: "33 Mr Poole has raised the application the Limitation Act 1969 to the compensation claim. S 14(1)(d) of the Limitation Act 1969 has the effect of imposing a six year limit on such claims for compensation under the Trees Act. We are therefore satisfied that the compensation claim must fail."
4. Ms Sims conceded that a claim for compensation for the 2013 crack to the wall is indeed out of time according to s 14(1)(d) of the Limitation Act 1969. However Mr Body still presses for compensation for other elements of damage.
5. Photographs indicate some other cracks have appeared in the wall more recently, but none as severe as the 2013 crack. The tilt on the wall seems to be substantially similar to its state in late 2013. Mr Tran's recommendations do not convince me that the wall needs replacing, but it seems on the evidence that if it does need replacing, this is primarily due to the 2013 damage rather than the tree's more recent impacts to the wall. Damage since 2013 might amount to 20% or some other portion of overall damage, but if the trigger for replacing the wall, rather than patching or repairing it, is the 2013 damage, it would be unreasonable to apportion the costs of its replacement according to various other elements of damage. Works required to the wall are principally linked to the earlier damage, which is now beyond the six-year limit arising from the Limitation Act 1969. No orders will be made to compensate Mr Body for works to his wall.
6. Mr Newhouse referred to additions to the garage that might affect the wall, as the wall was not engineered to support additional structural weight. Ms Sims argued that all building works were approved and certified. Due to my findings in the preceding paragraph, this warrants no further consideration here.
7. Turning to the garage floor, I accept that the tree may have caused some lifting of the concrete slab. Given the tree's size and proximity to the slab, this is to be expected. However, there is insufficient evidence before the Court to demonstrate that the concrete slab has not also been affected by other factors, or that it even needs to be replaced. Ms Sims suggested that a root growing between the wall's footing and the concrete slab would be evident if the Court made a site inspection. The presence of such a root might be evident, but that would not necessarily satisfy the Court that it has damaged the concrete slab. Investigations that would demonstrate causation have not been carried out. On the evidence before the Court, there are no grounds for ordering compensation for damage to the garage floor.

The applicants made reasonable effort

1. Mr Newhouse argued that the application of Ms Lamarre and Mr Smith must fail, as they did not make the effort required at s 10(1)(a) of the Trees Act to reach agreement with Ms Bracks. One or both of them may have attended meetings with Ms Bracks, but Mr Newhouse stated that those were joint meetings with Mr Body and principally concerned damage to Mr Body's property, subject to his application not theirs. On their application Ms Lamarre and Mr Smith stated (at question 7, Exhibit B): "I have spoken to the owner of the tree at least three times since 2018 and she has been dismissive on each occasion." I take them at their word that they at least raised the issue with Ms Bracks: a large branch of the tree strikes and damages the top of their dwelling wall (this is not disputed), so why would they not raise it? Perhaps their issue was overshadowed by those of Mr Body. The nature of their application suggests a neighbourly relationship with Mr Body, and they have been aware of his own inability to reach an agreed outcome with Ms Bracks. This might have influenced the strength of their own efforts. There was, at the very least, some effort. At paragraphs 2 and 3 of her affidavit (Exhibit 1), Ms Bracks stated: "2. I had never received any complaints relating to the eucalypt tree on my property from the previous owners of [the northern applicants' address]. 3. Since Brett Smith and Coleen Lamarre became the owners of [the northern applicants' address] there was very little effort to contact me in relation to their claim."
2. In August 2020, prior to these proceedings commencing, the BSPR report commissioned by Ms Bracks opened with: "As requested, an inspection has been undertaken to assess whether a large eucalypt tree located in the rear yard of the subject property is affecting: (a) the garage on the adjoining property at [Mr Body's address], and (b) the southern wall of the house on the property immediately to the north at [the northern applicants' address]."
3. It seems that Ms Bracks was aware of the issue with her tree damaging the northern applicants' property and asked Mr Candarakis to assess it. Had they received a satisfactory response, it is unlikely that Ms Lamarre and Mr Smith would have commenced these proceedings. I find their effort was reasonable.

The tree has damaged the applicants' property

1. Ms Bracks does not dispute that her tree has damaged, and is damaging, the northern applicants' property. Mr Green wrote on page 2 of his report: "…a large first order stem that accounts for approximately 20% of the tree's total live growth, has evidence of scaring [sic] from contact with the roof line… … Damage to the roof line… has been caused by contact from a first order branch, to prune/remove this would remove approximately 20% of total live canopy growth. Although this is considered major pruning (greater than 10%) it appears there is no other viable option to achieve building clearance. Impact to long term tree health from pruning is considered moderate, with no stability issues."
2. Photographs in Mr Green's report show that the large branch has damaged capping along the top of the brick wall of the northern applicants' dwelling. The applicants reported that brickwork has been cracked by the branch's impact. They obtained a quote from a bricklayer for repairing brickwork and replacing flashing. I am satisfied that the tree has damaged their property and orders should be made to remedy the damage and to prevent further damage.
3. Dead branches can be seen throughout the tree's crown. When they fall, they are likely to cause injury to anyone in open space beneath the tree's broad crown, and those above the northern applicants' dwelling are likely to damage their roof. Pruning to remove deadwood would mitigate the risk.

Consideration of relevant matters

1. Having considered all of the matters at s 12, I discuss relevant ones below.
2. The tree is in Ms Bracks' rear yard, close to the common boundary with the northern applicants' property and less than half a metre from their dwelling wall at its base. Almost half the tree's crown spreads to the north, above their property and the adjoining property to their north.
3. On my reading of the Leichhardt DCP, Inner West Council's consent would ordinarily be required to prune or remove the tree, although control C1 of the DCP states that consent is not required for: "… b. Selective pruning to a 3 metre clearance above the roof or from the face of all structures; and c. The pruning of deadwood that does not have hollows or provide habitat for native fauna. …"
4. If the tree was to be retained, prevention of further damage would require removal of the branch causing damage and removal of deadwood likely to fall and cause damage to the applicants' property or injury to any person. Removing the branch that is causing damage would result in the loss of up to 20% of the tree's crown and would leave a wound some 400-500 mm in diameter on the tree' stem. This should not cause any adverse impacts to the tree in the foreseeable future. Removing deadwood from the tree's crown would not affect the tree. Because pruning could mitigate the risk of future damage or injury, there is no reason in these proceedings to order the tree's removal, even though such an order is sought by Ms Lamarre and Mr Smith.
5. The tree's benefits are described at [33]. Pruning the tree to remove the offending branch and any deadwood would reduce these benefits to only a minor degree.
6. Ms Lamarre and Mr Smith brought the issue to Ms Bracks' attention. Even in the absence of being notified, a property owner such as Ms Bracks might reasonably be expected to note damage caused by her tree when that damage is easily visible from within her own property. No arboricultural or engineering expertise is required to see that her tree is damaging the northern applicants' dwelling: see The Owners - Strata Plan 3346 v The Owners - Strata Plan 10848 [2021] NSWLEC 1504 at [35]-[40]. A large branch of her tree has been impacting the neighbouring property for some time, and has been in close proximity to the dwelling for longer, yet Ms Bracks has taken no action to prevent the resulting damage.

Orders to be made for pruning the tree

1. Orders will be made to remove the branch causing damage and to remove deadwood from the tree. These orders are more than likely unnecessary, given that orders made in the western application will cause the tree's removal. Nevertheless, in case of unforeseen circumstances (successful appeal of the western application, for instance), discrete orders must be made to resolve each application. The timeframe of pruning orders in these proceedings will allow for orders in the western application to be completed first, in which case the pruning orders become redundant. Ms Bracks would not be required to obtain Inner West Council's consent for the works (s 6(3) of the Trees Act).

Compensation will be ordered

1. Ms Lamarre and Mr Smith seek compensation of $1,210, based on a quote from bricklayer J. P. Routley. The quoted works address damage caused by Ms Bracks' tree. The damage was readily foreseeable and preventable. Mr Newhouse again referred to the findings in Liang, arguing that the applicants in the current proceedings ought to have been aware of the tree's proximity, and therefore the likelihood of it damaging the dwelling, when they purchased their property. Again, I find that it is not a previous owner that has suffered loss through damage, as in Liang, but the current owners. As Ms Sims suggested, if the damage was foreseeable to the applicants, it was equally foreseeable to the respondent, who is responsible for managing the tree and might have taken steps to prevent damage. It is reasonable that Ms Bracks pays the quoted amount, or the actual cost of repairs should it turn out to be a lesser amount.

Proceedings 2021/109436

1. As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the orders below. 2. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the eucalypt tree in the northwest corner of her property to no more than 500 mm above ground level. 3. The works in (2) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 4. The respondent is to give the applicant at least one week's notice of the works in (2). 5. The applicant is to provide all reasonable access required to complete the works in (2) during reasonable hours of the day. 6. Within 90 days of the date of these orders the respondent is to plant on her property a native tree that will reach at least 6 metres in height at maturity. 7. The exhibits are returned except for A, B and 1.

Proceedings 2021/109559

1. As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the orders below. 2. Should orders in proceedings 2021/109436 become ineffective, within 90 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the eucalypt tree in the northwest corner of her property to: 1. remove the large branch to the north impacting the dwelling to the north, removing it back to its branch collar at the stem; and 2. remove all deadwood >40 mm in diameter from the tree's crown. 1. The works in (2) must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. The respondent is to give the applicants at least one week's notice of the works in (2). 3. The applicants are to provide all reasonable access required to complete the works in (2) during reasonable hours of the day. 4. If the tree is removed within 60 days of the date of these orders, orders (2)-(5) lapse. 5. If within 6 months of the date of these orders the applicants provide the respondent with a copy of a paid invoice for completed repairs to the applicants' dwelling wall damaged by the tree, the respondent is to pay the applicants $1,210, or the invoice amount if it is less, within two weeks of receiving the invoice copy. 6. The exhibits are returned except for A, B and 1.

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